On 23rd March, 2023, Indian National Congress’s former President Rahul Gandhi was convicted by Surat court, for defamation in relation to his one statement against ‘modi surname’. However, He got bail and his punishment was suspended by the court to give him time to appeal in session court.
Rahul Gandhi appealed against the decision under Section 389(1) of the criminal Procedure code, 1973 and appellate court pronounced the decision on 20th April. As it is a very important decision in Indian politics, it will be relevant to analyse what appellate court said in this decision.
Rahul Gandhi v. Prunesh Modi & Anr. (2023)
Lawyers of the parties
- Senior Advocate Mr. R.S. Cheema with Advocate Mr. K.C. Panwala appeared on behalf of the Appellant Rahul Gandhi and
- Advocate Mr. Harshit S. Tolia with Advocate Mr. Ketan P. Reshamwala appeared for Respondent Prunesh Modi who was original complainant and
- Public Prosecutor Mr. Nayan Sukhadwala appeared for the Respondent State.
Tests required to be established
Following tests were required to be established and satisfied by the Appellant\Rahul Gandhi-
(i) There should be a rare and exceptional case for the grant of stay against conviction.
(ii) There should be special and compelling circumstances in justifying the grant of stay against conviction.
(iii) There should be irreversible consequences leading to injustice and irretrievable damages in the event of non-granting of stay against conviction.
(iv) There should be no criminal antecedents barring the conviction in question.
(v) There should be prima-facie case on merits.
First Question- Maintainability of Complaint filed before the Trial Court
Appellant’s Counsel Cheema
- Under Section 199(1) of CrPC the complainant cannot be termed as an ‘aggrieved person’ and hence was not authorized to file the complaint.
(Section 199(1) provides that no Court shall take cognizance of an offence punishable under defamation law except upon a complaint made by some person aggrieved by the offence)
- The association and collection of persons cannot embrace a large population of 13 crores persons, which is not a definite or identifiable group. The concept of expression ‘Modi’ being an association of persons becomes entirely unacceptable. It was submitted that the complaint was filed with a political motive.
Respondent’s Counsel Harshit Tolia
- The accused has compared the person known by ‘Modi’ surname with thieves and thereby has defamed the well-defined class of the society, which includes the complainant, after attributing defamatory statements against the Hon’ble Prime Minister Shri Narendra Modi, the accused did not stop there and further commented that ‘why all thieves have the common surname of ‘Modi’?
- It was submitted that the defamatory statements were made by the accused and he had the knowledge that it would harm the reputation of ‘Modi’ surname holders and such statements were made only with a view to earn political gain.
Looking to prima facie evidence and observations made by Trial Court, it transpires that the Appellant had made certain derogatory remarks against the Hon’ble Prime Minister Shri Narendra Modi in general public and further compared the persons having ‘Modi’ surname with thieves and the complainant is also having surname of Modi.
Moreover, the complainant is ex-minister and involved in public life and such defamatory remarks would have certainly harmed his reputation and caused him pain and agony in society.
For such reasons, the court refused to accept the contention of maintainability of the complaint.
Second Question- Appellant did not get fair trial
Mr. Cheema shown his dissatisfaction about the appellant did not get the fair trial since inception of case and about lack of jurisdiction.
- Appellant was resident of New Delhi and the aTrial Court had no territorial jurisdiction to accept the complaint and issue summons without holding preliminary inquiry. It is submitted that there is violation of Section 202 of CrPC, as it provides mandatory enquiry before issuing summons.
- The complainant in strange manner rushed the Hon’ble High Court and obtained stay. Thereafter suddenly withdrew his petition stating that there was sufficient evidence against the Appellant, which has caused grave apprehension on the issue of fairness of the trial.
- Incident occurred on 13/4/2019 at Kolar, which was reported on 14/4/2019. The complaint was filed on 15/4/2019 and verification was recorded on 16/4/2019. It is further submitted that till summoning, no evidence was produced by the complainant.
- Trial Court has shown undue harshness in imposing the maximum sentence of 2 years. It was submitted that no reasons were given by Trial Court for inflicting maximum sentence and not granting benefit of Probation.
- Hon’ble Supreme Court had directed all the Trial Courts to expedite the matters of M.Ps and MLAs and hence the Trial Court did not do anything wrong in conducting the trial expeditiously.
- Appellant had never challenged the order of issuance of process and hence the ground of lack of territorial jurisdiction cannot be agitated at this stage and the trial could not be stated to be vitiated.
Court’s holding on the issue
The court referred some decisions to ascertain the legal position on preliminary inquiry. The court referred following judgments-
(a) Sunil Todi Vs. State of Gujarat; 2022 AIR (SC) 147
“-Section 202 of the Code confers jurisdiction on the Magistrate to conduct an inquiry for the purpose of deciding whether sufficient grounds justifying the issue of process are made out.
– not conducting inquiry under Section 202 of the Code would not vitiate the issuance of process, if requisite satisfaction can be obtained from materials available on record.”
(b) Asr Systems Private Limited versus Kimberly Clark Hygiene Products Private Limited; 2011 (0) AIJEL-MH 151056
“The purpose of directing enquiry under Section 202 Cr. P.C. is to avoid unnecessary inconvenience and harassment to the accused persons, who may be living outside territorial jurisdiction of the Court.
However, where the contents of the complaint, verification statement and other documents produced along with the complaint make out prima-facie case for issuance of process, perusal of such material itself is preliminary enquiry and if the Court is satisfied that prima-facie case is made out, process can be issued.
Therefore, in my opinion, said provision in section 202 Cr.P.C. is directory in nature and merely because Magistrate has not recorded statements of several witnesses before issuing process, process cannot be quashed.”
After referring above decisions, the court held that,
- It transpires that the Magistrate had after giving thoughtful consideration to the complaint, verification and documents produced therewith had issued the summons, which was never challenged by the Appellant at any stage and hence the objection taken by Appellant with regard to trial being vitiated due to lack of territorial jurisdiction cannot be accepted at this stage.
- So far as imposing of maximum punishment is concerned, it would be worthwhile to observe that the Appellant was not an ordinary person and was sitting MP, connected with public life. Any word spoken by Appellant would have large impact in mind of common public. The alleged speech given by Appellant on 13/4/2019 was during election campaign.
Moreover, high standard of morality is expected from a person like Appellant and the Trial Court had inflicted sentence, which was permissible in law. Further, it appears from record that all opportunities were accorded to Appellant for cross-examining the witnesses and hence the court did not agree with the contentions of Advocate Cheema about appellant being deprived of fair trial.
Third Question- If the order of conviction is not stayed then it would cause Appellant irreparable and irreversible injury
- Appellant was liable to suffer disqualification as Member of Parliament and stands disqualified as a 20 Member of Parliament from Waynad Parliamentary Constituency in Kerala. It is submitted that the Appellant was elected to the said constituency with a record margin of 4, 31,770 votes.
It is duly noticed in various judgments that the act of setting aside of an election has the effect of overriding the choice and aspirations of the electorate. It is also recorded in various judgments that the consequential act of holding a by-election entails a burden on the public exchequer.
- Various Hon’ble High Courts have considered the circumstance of depriving the candidates from conducting election of MLA/M.P would fall in the category of an exceptional case and such circumstance can be termed as irreparable and irreversible loss.
Tolia relied upon Judgment of Apex Court in case of Jyoti Basu & Ors. Vs. Debi Ghosal & Ors. reported in (1982) 1 SCC 691, wherein the Apex Court held that;
“8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election.”
Tolia heavily relied upon the Judgment of Gujarat High Court in the case of Naranbhai Bhikhabhai Kachhadia Vs. State of Gujarat reported in (2017) 2 GLR 130 wherein, the Hon’ble High Court has observed as under,
“21. Therefore, a public servant losing his job which is necessary for his survival has also not to be considered as a ground for exercise of such discretion for stay of the conviction. Disqualification earned as a Member of Parliament could not be a justification for exercise of such discretion.
-an order of conviction should not be suspended merely on the ground that non-suspension of such conviction may entail the consequences like removal of a government servant from service or, as it is stated in the facts of the case, disqualification as a Member of Parliament.
-on this aspect of irreversible situation being created causing damage to the applicant is also required to be considered with reference to the public interest. If such a representative of people or a public servant is allowed to behave in such fashion, it would also not be in the public interest and the court cannot absolve pending the appeal such a conduct at this stage exercising discretion under sec. 389 of CrPC.”
- Tolia submitted that Appellant in the capacity of number of Parliament and President of Second largest political party of the country, committed the offence by delivering defamatory speech in huge public gathering during the general elections.
- It was submitted that either MLA or MP or any elected representative are at par with any other ordinary citizen and cannot claim any special privilege. On the contrary, the public representative like Appellant is expected and need to be more careful for any action or inaction.
- The right to apply for the suspension of conviction pending appeal does not have a force of mandate but is merely a statutorily provided discretionary right present with the Court.
- There are around 12 offences of similar nature registered and pending against the Appellant. Based on which, it was submitted that Appellant is in the habit of making such defamatory and irresponsible statements.
It is not disputed fact that the Appellant was the Member of Parliament and President of the second largest political party and looking to such stature of Appellant he should have been more careful with his words, which would have large impact on the mind of people. Any defamatory words coming from the mouth of Appellant are sufficient enough to cause mental agony to aggrieved person.
In this case, by uttering defamatory words viz. comparing persons having surname ‘Modi’ with thieves would definitely have caused mental agony and harm the reputation of complainant, who is socially active and dealing in public.
While concluding the judgment, the court held that,
- Based on the above discussion, removal or disqualification as Member of Parliament cannot be termed as irreversible or irreparable loss or damage to the Appellant, as envisaged by Hon’ble Gujarat High Court in Naranbhai Bhikhabhai Kachhadia’s case.
- Counsel for the appellant has failed in demonstrating that by not staying the conviction and denying an opportunity to contest the election on account of disqualification u/s. 8(3) of the Representation of the People Act, 1951 an irreversible and irrevocable damage is likely to be caused to the Appellant.
- The Hon’ble Apex Court has held in numbers of pronouncements that the powers accorded under section 389(1) of CrPC to suspend/stay the conviction is required to be exercised with caution and circumspection and if such power is exercised in a casual and mechanical manner, the same would have serious impact on the public perception on the justice delivery systems and such order will shake public confidence in judiciary.
“Hence, I am of the opinion that the Appellant has not made out any case to suspend the conviction recorded against him.”
The court passed the following order-
Rahul Gandhi v. Prunesh Modi, (2023)
This article is authored by Advocate A. H. Gangohi.